# STATE OF KERALA AND OTHERS v. C. M. FRANCIS & CO

- **Citation:** [1961] 3 S.C.R. 181
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeal No. 279 of 1959
- **Bench:** J. L. Kapur, M. Hidayatullah, J. c. SHAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-kerala-and-others-v-c-m-francis-co-1953
- **Pages:** 5

## Headnote

Sales Tax-Recovery of-Remedies open to the authoritiesCode of Criminal Procedure, 1898 (V of 1898, s. 386(r)(b)-Travancore Cochin General Sales Tax Act (XF of II25 Malayalam Era),
SS. I] and 19.
The respondents were assessed to sales tax under the
Travancore Cochin General Sales Tax Act and proceedings were
started against them under s. 13 of the Act for the recovery of
the arrears of Sales Tax as if they were arrears of land revenue.
The proceedings were not fruitful. Thereafter a prosecution under
s. 19 of the Act was instituted against the partners who pleaded guilty and the magistrate issued warrants under s. 386(1)(h)
of the Code of Criminal Procedure to the Collector of the District
for the recovery of the arrears of sales tax as if they were a fine
imposed by that court. The authorities again started proceedings
under s. 13 of the Act read with Travancore Cochin Revenue
Recovery Act, 195r, and certain properties were attached. The
respondents urged that in as much as they were prosecuted
under s. 19 of the Act and the magistrate had issued warrants,
the procedure for recovery under s. 13 of the Act was not
available.
The question was whether s. 19 was to be taken to prevail
over s. 13 of the Act.
Held, that neither of the remedies for recovery of arrears of
tax as laid down by ss. 13 and 19 of the Travancore Cochin
General Sales Tax Act was destructive of each other and unless
the statute laid down in express words or by necessary
implica~
lion that one remedy was to the exclusion of the other, both the
remedies were open to the authorities and they could resort to
any one of them at their option.
Shankar Sabai v. Din Dial, I.L.R., [1889] 12 All. 409 (F.B.},
418, approved.

## Text

3 S.C.R. SUPREME COURT REPORTS
181
STATE OF KERALA AND OTHERS.
v.
C. M. FRANCIS & CO.
(J. L. KAPUR, M. HIDAYATULLAH and
J. c. SHAH, JJ.)
Sales Tax-Recovery of-Remedies open to the authoritiesCode of Criminal Procedure, 1898 (V of 1898, s. 386(r)(b)-Travancore Cochin General Sales Tax Act (XF of II25 Malayalam Era),
SS. I] and 19.
The respondents were assessed to sales tax under the
Travancore Cochin General Sales Tax Act and proceedings were
started against them under s. 13 of the Act for the recovery of
the arrears of Sales Tax as if they were arrears of land revenue.
The proceedings were not fruitful. Thereafter a prosecution under
s. 19 of the Act was instituted against the partners who pleaded guilty and the magistrate issued warrants under s. 386(1)(h)
of the Code of Criminal Procedure to the Collector of the District
for the recovery of the arrears of sales tax as if they were a fine
imposed by that court. The authorities again started proceedings
under s. 13 of the Act read with Travancore Cochin Revenue
Recovery Act, 195r, and certain properties were attached. The
respondents urged that in as much as they were prosecuted
under s. 19 of the Act and the magistrate had issued warrants,
the procedure for recovery under s. 13 of the Act was not
available.
The question was whether s. 19 was to be taken to prevail
over s. 13 of the Act.
Held, that neither of the remedies for recovery of arrears of
tax as laid down by ss. 13 and 19 of the Travancore Cochin
General Sales Tax Act was destructive of each other and unless
the statute laid down in express words or by necessary
implica~
lion that one remedy was to the exclusion of the other, both the
remedies were open to the authorities and they could resort to
any one of them at their option.
Shankar Sabai v. Din Dial, I.L.R., [1889] 12 All. 409 (F.B.},
418, approved.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
279 of 1959.
Appeal by special leave from the judgment and
order dated November 18, 1957, of the Kerala High
Court in 0. P. No. 87 of 1956.
A. V. Sayed Muhammad, for the appellants.
The respondents did not appear.
December 12.
State of Kerala
and Ors.
182
SUPREME COURT REPORTS
[1961]
1960. December 12. The Judgment of the Court
was delivered by
HIDAYATULLAH, J.-This is an appeal with the spev.
cial leave of this Court against the J
0udgment of the
C. M. Ft'ancis High' Court of Kerala dated November 18, 1957,
&Co.
passed in a petition for writ of prohibition under Art.
Hidayatullah J. 226 of the Constitution. ·The State of Kerala and the
Tahsildars of Kottayam and Kanjirappally Taluks
are the appellants, and C.M. Francis & Co., a partnership firm, is the first respondent, and the partners of
the firm are the remaining respondents.
The respondents were doing business in hill produce
like pepper, ginger, betelnuts etc., and were assessed
to sales tax under the Travancore-Cochin General
Sales Tax Act XI of 1125 (referred to as the Act), for
the years 1950 to 1954. The respondents have to pay
a sum of Rs. 1,01,716-4-3 as tax. In 1954, proceedings
were started against them under s. 13 of the Act,
which provides that if the taxis not paid as laid down
in that section, the whole of the amount or such pai-t
thereof as remains due, may be recovered as if it were
an arrear of land revenue. It appears that the proceedings were not fruitful, and a prosMution under
s. 19 of the Act was instituted against the partners in
the Court of the First Class Magistrate, Ponkunnam.
Respondents 2 to 5 pleaded guilty, and the Magistrate
passed an order on October 18, 1955 as follows:
"The sentence or other final order: A 1 to 4 sentenced to pay a fine of Rs. 50/- each and in default to
undergo S:' I. for one month each. A 1 to 4 admit
that they failed to pay on demand by the competent authority, a sum of Rs. 1,01,716-4-3 due from
them as sales tax for the years 1950 to 1954. This
amount will be realised from A· 1 to 4, jointly or
severally, individually or collectively under the
provisions of the Cr.P.C. for realisation of criminal
· fines, as if it were a fine imposed by this court on
each, accused individually and all of them together.
Takll steps for the realisation."
Witrrants under s. 386 (1) (b) of the Code of Criminal Procedure were issued to the Collector of Kottayam District for recovery of the arrears of sales tax.
3 S.C.R. SUPREME COIJRT REPORTS
183
The authorities, however, started proceedings again
'96•
.under s. 13 of the Act read with the provisions of the State of Kera/a
Travancore-Cochin Revenue Recovery Act, 1951 (VII
and ors.
of 1951 ), to recover .the amount as arrears of land rev.
venue, and attached some properties belonging to the c. M. Francis
respondents within the jurisdiction of the second and
& Co.
third appellants, the Tahsildars of Kottayam and H'd
-
11 h 1
Kanjirappally Taluks. The firm thereupon filed the
I ayatu a
.
petition under Art. 226 of the Constitution for a writ
of prohibition or other order or direction to the effect
that the proceedings for realisation of the arrears
under the Revenue Recovery Act be quashed. In the
petition, the respondents urged that inasmuch as they
were prosecuted under s. 19 of the Act and the Magistrate had issued warrants, the procedure for recovery
under s. 13 was not available. They contended that
under s. 386 of the Code of Criminal Procedure the
warrant is to be deemed to be a decree and has to be
executed according to civil process applicable to the
execution of decrees nuder the Code of Civil Procedure.
They, therefore, submitted that tho procedure under
s. 19 of the Act was no longer opeu, and could not be
proceeded with.
Section 19 of the Act, so far as it is material, reads
as follows:
"Any person who, .......... ..
(b) fails to pay within the time allowed, any tax
assessed on him ...... under this Act, or .........
(d) fraudulently evades the payment of any tax
assessed on him .......... ..
. shall on conviction by a Magistrate of the first class,
be liable to a fine which may extend to one thousand rupees and in the case of a conviction under
clause (b), (d) ...... , the Magistrate shall specify in
the order the tax ...... which the person convicted
has failed or evaded to pay ...... and the tax ...... so
specified shall be recoverable as if it were a fine
under the Code of Criminal Procedure for the timebeing in force."
In dealing with the question, the learned Judges
of the High Court felt that s. 13 of the Act was in the
1960
State of Kerala
and Ors.
v.
C. M. Francis
<So Co.
Hidayatullah j.
184
SUPREME COURT REPORTS
[1961]
nature of a general law, over which the special procedure prescribed by s. 19 of the Act read with s. 386 of
the Code of Criminal Procedure was to prevail. They,
however, thought that, since all the processes available under s. 19 of the Act were also available under
s. 386 of the Code of Criminal Procedure, it was not
necessary to decide what would happen if the proceedings under s. 386 came to nothing. They observed that if the question arose, they would consider it.
The writ of prohibition was granted by the High
Court.
The respondents did not appear in this Court. We
have heard learned counsel for the appellants, who
has drawn our attention to all the relevant provisions
of the law. The question which arises is whether
s. 19 must be ta.ken to prevail over s. 13 of the Act.
Both the sections lay down the mode for recovery of
arrears of tax, and, as has already been noticed by
the High Court, lead to the application of the process
for recovery by attachment and sale of movable and
immovable properties, belonging to the tax-evader. It
cannot be said that one proceeding is more general
than the other, because there is much that is common
between them, in so far as the mode of recovery is
concerned. Section 19, in addition to recovery of the
amount, gives the power to the Magistrate to convict
and sentence the offender to fine or in default of payment of fine, to imprisonment. In our opinion, neither
of the remedies for recovery is destructive of the
other, because if two remedies are open, both can be
resorted to, at the option of the authorities recovering
the amount. It was observed by Mahmood, J. in
Shankar Sakai v. Din Dial (')that where the law provides two or more remedies, there is no reason to
thinkthat one debars the other and therefore both
must be understood to remain open to him, who claims
a remedy. Unless the statute in express words or by
necessary implication laid down that one remedy was
to the exclusion of the other, the observations of
Mahmood, J. quoted above must apply. In our opinion, in the absence of any such provision in the
(1) l.L.R. (1889) u All. 409 (F.B.), 418.
3 S.C.R. SUPREME COURT REPORTS
185
Act, both the remedies were open to the authorities,
and they could resort to any one of them at their
option.
The appeal is allowed, and the judgment of the
High Court set aside. Though the respondents did
not appear, in the circumstances of the case we think
we should make an order that the costs shall be paid
by them both here and in the High Court.
Appeal allowe,d.
THE J. K. COTTON SPINNING & WEAVING
MILLS CO., LTD.
v.
THE STATE OF U'l'TAR PRADESH & ORS.
(P. B. GAJENDRAGADKAR, K. N. WANCHOO and
K. c. DAS GUFTA, JJ.)
Industrial Dispute-Proposed dismissal of workmen-Pending
dispute-Permission not sought-Reference to adjudication-Validity of-U. P. Industrial Disputes Act, r947 (U. P. 28 of r947),
ss. 3 and 8-Government Order dated March IO, r948, els. 5(a), 23.
Under ss. 3 and 8 of the U. P. Industrial Disputes Act, r947
the Governor issued an Order dated March 10, 1948, making
detailed provisions for the settlement of Industrial Disputes.
Clause 5(a) of the Government Order empowered, among others,
a recognised association of employers to refer an industrial dispute for adjudication to the Conciliation Board. Clause 23 provided that no employer shall discharge or dismiss any workman
during the pendency of an inquiry except with the written permission of ttie Regional Conciliation Officer, and cl. 26 provided
for penalties for contravention oi cl. 23. The appellant proposed
to dismiss certain workmen. Though at the time there was a
dispute pending inquiry, the appellant did not seek permission
under cl. 23 to dismiss the workmen; but the Employers' Association of Northern India made an application under cl. 5(a) to the
Board to adjudicate and give an award that the appellant was
entitled to dismi~s the workmen. The workmen contended that
the reference under cl. 5(a) was incompetent as the appellant had
not first taken proceedings under cl. 23.
Held, that the application under cl. 5(a) of the G. 0. was not
••
State of Kerala
and Ors.
v.
C. M. Francis
<>-Co.
Hidaj1atulla1' ].
1960
December xa.